Big test for race and higher ed hits Supreme Court

Seven years ago, Michigan voters passed a ballot initiative banning racial preferences in public education. Since then, black enrollment at the state’s top universities—never high to start with—is way down. Tuesday, the U.S. Supreme Court will hear a case aimed at overturning the ban.

The ballot measure, based on a nearly identical initiative passed by California voters in 1997, bars the state from using race, ethnicity, or gender as a factor in making decisions about education, government jobs, and government contracts. The courts have so far split on the two bans: California’s has been consistently upheld as constitutional. But last year a federal appeals court struck down Michigan’s. It’s that confusion that the Supreme Court appears to want to clear up.

The legal question in the case, Schuette v. Coalition to Defend Affirmative Action, is not whether race-conscious admissions to universities are constitutional—the Supreme Court passed up a chance to bar them. Rather, the appeals court ruled that it’s unfair to deny racial minorities the right to lobby college officials in favor of programs to help minorities, since other groups enjoy that right.

Forcing minority advocates to instead mount a lengthy and expensive campaign to repeal the initiative, the court wrote, ”undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

Conservative supporters of the measure, including Michigan Attorney General Bill Schuette, who is defending the ban in court, frame it as an anti-discrimination effort. But opponents say it’s already helped cull the number of minorities in the state’s higher education system.

Blacks were badly underrepresented at the state’s top schools even before the measure into effect. In 2006, they were 6.9% undergraduates at the University of Michigan, though they make up over 14% of the state’s population. “We’re talking peanuts to begin with,” said Mark Rosenbaum, a law professor at the university who is challenging the ban.

But by last year, when the ban took full effect, blacks were just 4.4% of undergraduates at the school, a decline of 33%.

It’s not just undergrads. In 2012, African-Americans earned just 3.9% of doctoral degrees at the University of Michigan, the lowest percentage since 1993, and less than half the share they earned, on average, between 2002 and 2011. It’s a similar story at the state’s other public universities. Wayne State’s medical school graduated just 13 blacks last year—down from 39 in 2011.

At California’s top public universities, black enrollment is also way down since the state’s ban went into effect.

Throwing out race as a factor might not be so harmful, say opponents of the ban, if it weren’t for the chronic inequality that already afflicts the state’s public schools, meaning minoriity students aren’t competing on a level playing field.

“You look at the bottom 5 percent of the schools, they’re all in predominantly minority areas,” Kary Moss, the executive director of Michigan’s ACLU chapter, told MSNBC.“We should be doing everything we can to remove barriers, not erect them,” she said.

Moss and the ACLU are currently suing the district of Highland Park, where 90% of 11th graders—predominantly minorities—can’t read.

But convincing five of the justices may be a heavy lift. The court has already narrowed the circumstances in which affirmative action can be used. And the lower court’s ruling, which was 8-7 on partisan lines, came after two Republican-appointed judges recused themselves.

“I would eat a copy of the 14th Amendment if in fact the court upholds the 6th Circuit’s decision,” Peter Kirsanow, a Republican member of the U.S. Commission on Civil Rights, told the AP.